Richland Parish Police Jury v. Debnam

92 So. 3d 487, 2012 WL 1316996, 2012 La. App. LEXIS 524
CourtLouisiana Court of Appeal
DecidedApril 18, 2012
DocketNo. 47,159-CA
StatusPublished
Cited by2 cases

This text of 92 So. 3d 487 (Richland Parish Police Jury v. Debnam) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richland Parish Police Jury v. Debnam, 92 So. 3d 487, 2012 WL 1316996, 2012 La. App. LEXIS 524 (La. Ct. App. 2012).

Opinions

BROWN, Chief Judge.

| defendants, Donald and Joyce Deb-nam, appeal the judgment of the trial court denying their peremptory exception of res judicata and granting a preliminary injunction in favor of plaintiffs, Richland Parish Police Jury, Lester Wayne Johnson, M.D., R & B Planting Co., George B. Franklin & Son, Inc., Big Creek Farms [489]*489Partnership, Ricky Goodman, Randy Swain, and Jerry Bell. For the reasons stated herein, we affirm the judgment of the trial court and remand the case for the fixing of security.

Facts and Procedural Background

Defendants, Donald and Joyce Debnam, own 120 acres situated on the north side of Ruff Road in Richland Parish. Ruff Road runs east and west and forms the south boundary of the property. Cypress Creek runs in a generally north-south direction across their property. The Debnams constructed a dam, earthen works, and other structures on Cypress Creek adjacent to Ruff Road in an attempt to prevent the eroding and flooding of their property.

Plaintiffs, the Richland Parish Police Jury and numerous adjoining property owners, filed this suit for injunctive relief against defendants seeking to force them to remove the dams built on their land. Plaintiffs contend that the obstructions interfere with the natural flow of the creek and cause flooding to adjacent properties, causing damages to the surrounding landowners’ crops and a parish-maintained roadway, Ruff Road.

The Police Jury had filed a prior suit in 2006 seeking to have the Debnams ordered to remove the dams then built on Cypress Creek. In that matter, the trial court ruled in favor of the Police Jury, but this court |2reversed that decision on appeal finding that there was an insufficient showing that the flooding alleged was solely caused by the obstructions on the Deb-nam property.1 We further concluded that there were multiple causes contributing to the damages alleged by the Police Jury, including the actions of the Police Jury itself. The Louisiana Supreme Court denied writs and defendants rebuilt their dams.

In the years that followed the first suit, the Police Jury has made modifications to the drainage system in the vicinity at issue, including the installation of new and larger culverts at Futch Road and Nicole Drive, and the clearing out of some obstructions in the W-27 canal north of the Debnam property.

Plaintiffs filed this current suit for in-junctive relief on May 27, 2011. In response, defendants filed numerous exceptions, most notably an exception of res judicata. Plaintiffs amended their petition on July 26, 2011, to demand a preliminary injunction. After a full evidentiary hearing on August 4, 2011, the trial court denied all exceptions and granted plaintiffs’ preliminary injunction which prohibited the Debnams from erecting any new obstructions across Cypress Creek and ordered the removal of the then existing obstructions within 15 days, or should they not do so, for the police jury to remove the obstructions with the costs to be paid by defendants.

The Debnams filed a motion for appeal and requested a stay of all proceedings, which the trial court denied. Defendants then filed an | ¡¡application for a writ with this court to stay removal of the obstructions, which was granted on November 11, 2011.

Discussion

The Debnams’ essential argument on appeal is twofold: that plaintiffs are not entitled to the relief sought, as their claim is barred by the doctrine of res judicata, and, that plaintiffs failed to show that they would suffer irreparable harm in the absence of the preliminary injunction.

[490]*490The Debnams contend that plaintiffs failed to show that irreparable injury, a loss that cannot be adequately compensated in monetary damages, will result if the obstructions across Cypress Creek remain in place. They argue that since plaintiffs’ petition for injunction demands various money damages, they can adequately value any damages that they may incur, and, thus, any harm is not irreparable. Plaintiffs assert, however, that defendants’ obstructions are interfering with their natural servitude of drainage, and, as such, a showing of irreparable harm is not required.

A natural servitude of drainage is due by an estate situated below to receive the surface waters that flow naturally from an estate situated above. La. C.C. art. 655. The owner of the servient estate may not do anything to prevent the flow of water. La. C.C. art. 656.

La. C.C.P. art. 3601, the usual statutory grounds for the issuance of an injunction, provides in pertinent part that an injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to applicant, or in other cases specifically provided by law. An injunction to protect a servitude, however, is authorized under La. C.C.P. art. 3663. Specifically, L section 2 of that article allows a person injunctive relief to protect or restore possession of immovable property or of a real right in immovable property of which he claims ownership, possession, or enjoyment. A preliminary injunction brought pursuant to La. C.C.P. art. 3663 does not require a showing of irreparable harm. Monroe Real Estate & Development Co., Inc. v. Sunshine Equipment Co., Inc., 35,555 (La.App.2d Cir.01/23/02), 805 So.2d 1200.

The general rule is that an injunction will only be issued in its prohibitory form, but when a defendant obstructs a plaintiff in the enjoyment of a real right, the latter may be entitled to a prohibitory injunction restraining the disturbance and also to a mandatory injunction for the removal of the obstruction. Concerned, Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App.1st Cir.03/24/05), 906 So.2d 660; Harris v. Pierce, 73 So.2d 330 (La.App.Orleans 1954).

The right to drain water from one’s property over the lands of others is not a prerogative of ownership but a real right of servitude requiring a dismemberment of the ownership of others or a charge laid on their immovables. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981). When the owner of the servient estate does something to prevent the flow of the water, such as placing obstacles to drainage from the dominant through the servient estate, the remedy is a mandatory injunction ordering the owner of the servient estate to remove the obstacle. Poole v. Guste, 261 La. 1110, 262 So.2d 339 (La.1972); Gaharan v. DOTD, 566 So.2d 1007 (La.App. 3d Cir.1990).

LA preliminary injunction in its prohibitory form seeks to preserve the status quo until a full trial on the merits and it may be issued upon a prima facie showing by the applicant seeking the injunction. Louisiana Granite Yard, Inc. v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.08/18/10), 47 So.3d 573, writ denied, 10-2354 (La.12/10/10), 51 So.3d.733; Louisiana Gaming Corp. v. Rob’s Mini-Mart, Inc., 27,920 (La.App.2d Cir.01/24/96), 666 So.2d 1268. However, a mandatory preliminary injunction, so named because it orders the doing of something, requires the party seeking the injunction to show by a preponderance of the evidence at an evidentiary hearing that he is entitled to [491]*491the preliminary injunction sought. City of New Orleans v. Board of Directors of the Louisiana State Museum, 98-1170 (La.03/02/99), 739 So.2d 748.

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